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involves no perjury. Thus, if you should not pay a price for your life, agreed on with robbers, it is no fraud if you should not perform it, though bound by an oath.' For a pirate is not comprehended in the number of lawful enemies, but is the common foc of all men. With such a man, neither

1 "Grotius," says an anonymous commentator (do Juro Belli et Pacis, 11, 13, § 15), "citing this passage, admits that a person extorting a promise by force, can have no right to demand its performance; but thinks that an oath accompanying it makes it binding in conscience." Hobbes, de Civ. ii. 16, maintains that a promise, because extorted by fear, is not the less obligatory in cases where the promiser receives from it some benefit. On this it is remarked by Puffendorf, that merely abstaining from injury can not be reckoned among benefits; that a highwayman, for instance, who does not murder you, can not be called your benefactor. Hobbes's doctrine is, therefore, thus qualified by Puffendorf, provided that the promiser can legitimately exact the performance of that promise. To this Barbeyrac, the learned and acute commentator on both Grotius and Puffendorf, fully accedes, and pronounces that every act of violence, every sort of menace, by which the promises, against his will, is induced to make an engagement into which he otherwise would not have entered, deprives him of the liberty necessary to form a valid engagement, and, consequently, annuls all such promises and convocations. He adds, that the performance of an engagement made under such circumstances is injurious to society, as it leads to the encouragement of robbers. Adam Smith has treated this question much at length, Theory of Mor. Sent. vii. 4. With some exceptions, and guardedly, he leans to the opposite opinion. Some regard, he thinks, should be paid to promises of this kind, but how much it is not possible to determine by any general rule. If the sum promised was very great, such for example as would ruin by its payment the family of the payer, or sufficient to effect the most useful purposes, it would appear comical, at least extremely improper, to throw it into such worthless hands, but in general it may be said that exact propriety requires the observance of such promises where not inconsistent with other duties, when violated it is always with some degree of dishonor to the person who made them. It is observable that Paley appears to have changed his opinion on the subject of such promises. In the first edition of his valuable work on Moral and Political Philosophy, III. part 1, 5, he states their obligation to depend on the question whethcr mankind are benefited or not by their observance, concluding that lives are saved by it, he treats such promises as in general binding. But in subsequent editions he observes, that they may be made the instrument of almost unlimited extortion, and therefore in the question between the importance of these opposite consequences resides the doubt concerning the obligation of such promises. The noble-minded Montaigne remarks on this subject: "Ce que la crainte m'a fait une fois vouloir, je suis tenu de la vouloir encore sans crainte; et quand elle n'aura forcé que ma langue sans la volonté, encore, suis jo tenu do fairo la maille bonne de ma parole."

For to swear what is

should faith nor an oath be in common. false is not always perjury; but not to do that which you swear according to the sentiment of your mind, “ex animi tui sententia," as it it expressed in words in our law form, is perjury. For Euripides says well-" With my tongue have I sworn; I bear an unsworn conscience."

But Regulus was under obligation not to disturb by perjury the conditions and covenants of war and of the enemy; for the affair was transacted with a just and lawful foe, in regard to whom both the entire Fecial law and many other laws are binding in common. Had not this been so, the senate would never have delivered up eminent men bound to the enemy.

XXX. But Titus Veturius and Spurius Postumius, when they were consuls the second time, were given up to the Samnites because they had made a peace with them, after having fought with ill success at Caudium, when our legions were sent under the yoke; for they had made it without the command of the people and senate. And at the same time, Titus Numicius, and Quintus Mælius, who were then tribunes of the people, because the peace was made by their authority, were given up, that the peace with the Samnites might be rejected. And of this surrender, Postumius himself, who was given up, was the advocate and author. Which same thing Caius Mancinus did, many years afterward, who advocated that bill which Lucius Furius and Sextus Atilius, by a decree of the senate, brought in, that he himself should be delivered up to the Numantines, with whom he had made a league without the authority of the senate; which bill being passed by the people, he was given up to the enemy. He acted more worthily than Quintus Pompeius, through whose petitioning against such a measure, when he was in similar circumstances, the law was not passed. With this man, that which seemed his interest had more weight than virtue had; in the former instances, the false semblance of expediency was overcome by the authority of virtue. But, say they, that which was extorted by force ought not to be ratified; as if, indeed, force could be used to a man of fortitude. Why, then, you say, did Regulus go to the senate, if he was about to dissuade them concerning the captives? You are reprehending that which was the

noblest thing in that transaction; for he did not rely upon his own judgment, but he undertook the cause that there might be a decision of the senate; by whom, had not he himself been the adviser of the measure, the prisoners, indeed, would have been restored to the Carthaginians. "Thus Regulus would have remained in safety in his country; which, because he thought inexpedient for his country, therefore he believed it virtuous in himself, both to think and to suffer these things. Now, as to what they say, that whatever is very useful becomes virtuous, I say, Nay, it is so really, and does not merely become so; for nothing is expedient which is not likewise virtuous; and it is not because it is expedient that it is virtuous, but because it is virtuous it is expedient. Wherefore out of many admirable examples, one could not easily mention one either more laudable or more excellent than this.

XXXI. But out of all this laudable conduct of Regulus, this alone is worthy of admiration, that he was of opinion that the prisoners ought to be retained. For that he returned seems wonderful to us now, though at that time he could not do otherwise. Therefore, that was not the merit of the man, but of the times. For our ancestors were of opinion that there was no tie closer than an oath to bind our faith. This the laws of the twelve tables indicatethis the leges sacrata' indicate, this the leagues indicate, by which our faith is pledged even with enemies. The opinions and animadversions of the Censors indicate it, who passed sentence on no subject more strictly than on such as concerned oaths. Marcus Pomponius, tribune of the people, fixed a day for Lucius Manlius, the son of Aulus, when he had been Dictator, to stand his trial, because he had taken to himself a few days in addition for holding the dictatorship. He accused him also because he had banished from intercourse with men, his son Titus, who was afterward called Torquatus, and had commanded him to reside in the country. When the young man, the son, had heard this, that trouble was brought upon his father, he is said to have hastened to Rome, and to have come with the first dawn to

1 The laws concerning liberty and the tribunitial power, so called, because he who violated them was to be held devoted (sacer) to the resentment of the deity.

the house of Pomponius, who, when it was announced to him, supposing that the son, being enraged, was about to bring to him some accusation against his father, arose from his bed, and, the bystanders having been dismissed, ordered the youth to come to him. But he, when he entered, hastily drew his sword, and swore that he would intantly slay him unless he gave his oath that he would suffer his father to be discharged. Pomponius, forced by fear, swore this; he subsequently brought the matter before the people, and informed them why it was necessary for him to abandon the prosecution, and then suffered Manlius to be discharged. So much force had an oath in those times. And this is that Titus Manlius who acquired the surname of Torquatus, at the Anio, for taking the collar from the Gaul, whom he, having been challenged by him, had slain; in whose third consulship the Latins were routed and put to flight at the Veseris. A most eminently great man, but though very indulgent to his father, was again cruelly severe to his son.

XXXII. But as Regulus is to be commended for observing his oath, so these ten are to be condemned whom Hannibal, after the battle of Cannæ, sent to the senate under an oath that they would return to that camp which the Carthaginians had got possession of, unless they succeeded about redeeming the prisoners; if it be true that they did not return-about whom, all historians do not relate the story in the same manner. For Polybius, an emineutly good author, writes, that out of ten very noble persons who were then sent, nine returned, the request not having been granted by the senate; that one of the ten, who, a short time after he had gone out of the camp, had returned, as if he had forgotten something, remained at Rome. For, by his return into the camp, he construed it that he was freed from his oath— not rightly, for fraud does but fasten, not absolve perjury. It was, then, silly cunning, perversely imitating prudence. The senate, therefore, decreed, that this double-dealing and artful fellow should be brought fettered to Hannibal. the greatest act of the senate was this. Hannibal had eight thousand men prisoners; not those whom he had taken in battle, or who had fled from the peril of death, but who had been left in the camp by the Consuls, Paullus and Varro. The senate decreed that these should not be redeemed, though

But

it might have been done at a small expense, that it might be impressed upon our soldiers that they were either to conquer or die-which circumstance, indeed, having become known, the same author writes that the courage of Hannibal fell, because the Roman senate and people possessed so lofty a spirit in their depressed condition. Thus those things which scem expedient, are overpowered by a comparison with virtue.

But Acilius, who wrote his history in Greek, says that there were more than one who returned into the camp with the same fraudulent design, that they might be freed from their oath, and that they were branded by the censors with every ignominy.

Let this now be the end of this subject. For it is plain that those acts which are done with a timid, humble, abject, and broken spirit (such as would have been the conduct of Regulus, if, respecting the prisoners, he had either advised what seemed to be needful for himself, not what he considered beneficial to the commonwealth, or had desired to remain at home), are inexpedient, because they are scandalous, foul, and base.

XXXIII. The fourth part remains, which is comprehended in propriety, moderation, modesty, continence, temperance. Can any thing, then, be expedient, which is contrary to this train of such virtues? However, the Cyrenæans, followers of Aristippus, and the Annicerians, misnamed philosophers, have made all good consist in pleasure, and have thought virtue to be commended on this account, because it is productive of pleasure; but, as they are antiquated, Epicurus flourishes, the advocate and author of nearly the same opinion. Against these we must fight with man and horse, as it is said, if it is our intention to defend and retain virtue. For if not only expediency, but all the happiness of life, be contained in a strong bodily constitution, and in the certain hope of that constitution, as it is written by Methrodorus; certainly this expediency, and that the greatest (as they think), will stand in opposition to virtue. For, in the first place, where will room be given for prudence? Is it that it may seek on all sides after sweets? How miserable the servitude of virtue, when the slave of pleasure? Moreover, what would be the office of Prudence? Is it to select pleasures ingeniously? Admit that nothing could be more delightful than this; what can be

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